Analysis: Duke’s new P2P policy won’t stop RIAA lawsuits

Duke University says it's not going to cough up any student info to the RIAA …

Since the RIAA decided to go after on-campus P2P use in a big way back in February 2007, one of the major questions facing university IT departments was how to respond to the RIAA's prelitigation settlement letters. Duke University has decided that it will now require concrete evidence that copyright infringement actually occurred before forwarding those letters to students.

As an incentive to get students to settle sooner rather than later, the RIAA has instituted a tiered settlement system. Basically, the faster the student forks over the cash to the record labels, the less it will cost him or her. If a school receives a prelitigation settlement letter from the RIAA and immediately forwards it on to the target, it will cost the student $3,000. If the RIAA needs to file a Doe lawsuit to learn the identity of the student, the cost goes up to $4,000. And should the student seek to block the subpoena or otherwise block the RIAA's attempts to discover the name behind the IP address, the price doubles to $8,000.

According to The Chronicle, an independent student newspaper at Duke University, the school's decision comes out of a desire to provide more support for students targeted by the RIAA's legal campaign. "What we're saying is that in order for us to pass on a settlement letter to a student, we're going to start requiring evidence that someone actually downloaded from that student," Moneta told The Chronicle. "If the RIAA can't prove that actual illegal behavior occurred, then we're not going to comply."

That's a noble decision, but it's not going to slow down the RIAA's legal juggernaut. The RIAA will argue that the fact that a MediaSentry employee was able to download songs in their entirety is evidence of an "actual download." That distinction has been good enough for judges in close to 30,000 Doe lawsuits filed so far. The argument has been made by opponents of the RIAA's campaign that MediaSentry downloads don't count, because they're being made by the record labels' authorized agent and therefore can't be infringing. After all, you can't infringe your own copyright, right?

Judge Michael J. Davis, who presided over the Jammie Thomas trial and recently ordered a new trial after giving a flawed jury instruction, doesn't think so. In overturning the original $222,000 copyright infringement verdict against the single mother from the Iron Range of Minnesota, he ruled that the RIAA could introduce the MediaSentry downloads as evidence of copyright infringement in the retrial. So from the RIAA's point of view (as well as that of judges in Doe cases), the MediaSentry downloads are evidence enough of infringement.

Duke University joins a handful of other schools that have so far refused to play ball with the RIAA. Wisconsin has refused to forward infringement letters on to the students, while the University of Oregon fought an ultimately unsuccessful battle to prevent the RIAA from learning the identities of students on the campus network flagged for sharing songs on P2P networks.

But all refusing to go along with the RIAA's preferred mode of dealing with copyright-infringing students will do is cause the record industry to alter its tactics as it has done in the past, ultimately leading to steeper settlement costs for students. If the school wants to prove its determination to stand up to the RIAA, it could stand up to the copyright bullies. Short of that, not much good is going to come of Duke's move. An anonymous Duke student agrees. "So basically what they're saying now is that before this they didn't have proof? They allowed for 'not good proof' to be shown beforehand, or just not shown at all?" he told The Chronicle. "So now Duke is requiring evidence—so what? It's still not going to change anything."

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman